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Thursday, May 10, 2012

The Department of Justice filed a complaint against the Maricopa County Sheriff's Office and Sheriff Joe Arpaio today, alleging unconstitutional law enforcement practices. The Assistant A.G. who is leading the action for the Civil Rights Division, Thomas Perez, also alleged in his morning news conference, that it was only the second time that the local law enforcement agency has forced the DOJ to file a contested legal action instead of working out a settlement before litigation.

Today, the Department of Justice did something it has done only once before in the 18-year history of our civil police reform work; we filed a contested lawsuit to stop discriminatory and unconstitutional law enforcement practices. In our police reform work, we have invariably been able to work collaboratively with law enforcement agencies to build better departments and safer communities. Maricopa County, the Maricopa County Sheriff’s Office and Sheriff Arpaio have been a glaring exception. Attempts to forge solutions to address the serious civil rights and public safety concerns have proven elusive.

In June 2008, the Department of Justice began its initial inquiry into allegations that the Maricopa County Sheriff’s Office and Sheriff Joseph Arpaio were violating the constitutional rights of people in Maricopa County. In September 2010, following repeated unsuccessful efforts to obtain MCSO’s and Sheriff Arpaio’s voluntary compliance with its legal obligations to provide information in connection with our investigation, the department took the virtually unprecedented step of filing a lawsuit to force MCSO to comply. This lawsuit successfully caused MCSO to meet its legal obligations and it was settled in June 2011.

Six months later, in December 2011, the department issued its letter of findings detailing the results of our investigation. Our investigation found that there is reasonable cause to believe that MCSO and Sheriff Arpaio engage in: 1) a pattern or practice of discriminatory policing of Latinos, 2) discriminatory jail practices against Latino prisoners with limited English skills, and 3) a pattern or practice of unlawful retaliatory behavior against perceived critics of MCSO through baseless criminal charges, unfounded civil lawsuits and meritless administrative actions.

After we issued our findings letter, we tried to reach a negotiated settlement. The United States is not seeking, and has never sought, monetary damages or attorney’s fees in connection with our case, though Title VI authorizes the termination of federal funding. Rather, we sought, and continue to seek, to accomplish one important goal: to fix the problems identified in our investigation and ensure that the necessary policies, practices and oversight are in place so that MCSO and Sheriff Arpaio comply with the Constitution and laws of the United States.

We traveled to Phoenix in early February and met with lawyers for MCSO and Sheriff Arpaio as well as with the county attorney, where we discussed the parameters of a potential settlement. We made it clear, orally and in writing, that a settlement would require an independent monitor. Later that month, we gave MCSO and Sheriff Arpaio a 128-page draft settlement agreement, which we hoped would serve as the framework for further discussion. Unfortunately, these further discussions were brief, and negotiations broke down, primarily because MCSO and Sheriff Arpaio would not agree to any settlement that included an independent monitor.

A monitor, in general, and specifically in a case of this nature, is not a new requirement. Monitors have been critical components of our settlements in other police cases, from Los Angeles to Pittsburgh to Cincinnati, and they play an important role in ensuring that reforms are carried out in an effective, fair and sustainable fashion. Ronald Reagan was correct: trust but verify. Monitors do not usurp the function of sheriffs; in fact, there was a provision in the proposed agreement that stated, “The monitor shall not, and is not intended to, replace or assume the role or duties of the defendant, including the Sheriff.” Monitors work collaboratively with sheriffs’ offices, police departments, courts, communities and the Justice Department to provide necessary support and assistance to ensure that the problems are fixed in a sustainable fashion. Unfortunately, this provision was unacceptable to the Sheriff and MCSO and they ended negotiations.

Left with no choice, earlier today we filed a civil complaint in the United States District Court against Sheriff Arpaio, the Maricopa County Sheriff’s Office and Maricopa County.The police are supposed to protect and serve our communities, not divide them. At its core, this is an abuse of power case involving a sheriff and sheriff’s office that disregarded the Constitution, ignored sound police practices, comprised public safety, and did not hesitate to retaliate against perceived critics. Constitutional policing and effective policing go hand-in-hand. Our complaint alleges that the defendants’ actions were neither constitutional nor effective.

There are three categories of claims in the complaint. First, the complaint alleges that MCSO’s police practices unlawfully discriminate against Latinos in violation of their constitutional and statutory rights. It is Sheriff Arpaio’s prerogative to set law enforcement priorities for his agency. Whatever his priorities, he must carry them out in a manner that is consistent with his constitutional and statutory obligations. Law enforcement agencies cannot cut constitutional corners in the pursuit of their objectives, and the complaint alleges that from at least 2006 to the present, MCSO officers have unlawfully discriminated against Latinos and violated their constitutional rights in a number of ways, including racial profiling of Latinos in traffic stop settings; unlawful detention, searches and arrests of Latino drivers and passengers; and unlawful targeting and illegal detention of Latinos during home and worksite raids.

The complaint further alleges that MCSO failed to adopt basic policy, training and internal oversight practices to monitor these police activities, examine their effectiveness, and prevent unlawful activities. For instance, despite the fact that the traffic operations have very low “hit rates,” and very high rates of stopping Latino U.S. citizens and legal residents, the specialized units receive little oversight and inadequate training. If you looked Latino, you were all too frequently fair game for MCSO officers.

The second category of claim in the complaint is that MCSO’s correctional practices violate the constitutional and statutory rights of Latino prisoners in MCSO jails who have limited English skills. It is essential as a safety matter and as a civil rights matter for officials who administer a jail to ensure that employees can effectively communicate with prisoners who have limited English skills. MCSO recognizes this obligation. In a position statement of June 14, 2010, MCSO noted the importance of providing language assistance to LEP prisoners, stating that such assistance is “essential to the overall operation of the jails and the safety of the prisoners and officers.”

The complaint outlines how MCSO failed to put this into practice in its jails. MCSO and Sheriff Arpaio routinely failed to provide necessary Spanish language assistance to Latino prisoners with limited English skills. As the complaint outlines, MCSO detention officers routinely issue commands only in English. In some instances, when Latino prisoners with limited English skills failed to follow a command given in English because they could not understand, the detention officers placed an entire area of a jail in lockdown. This incites obvious and unwarranted hostility toward the inmates, potentially placing prisoners and officers alike in harm’s way.

In other circumstances, MCSO detention officers have forced Latino prisoners with limited English skills to sign key legal documents printed in English, in which they forfeited key rights.

MCSO’s failure to provide effective language assistance services is a violation of the civil rights of Latino prisoners with limited English skills, and is a substantial departure from generally accepted correctional standards.

The third category flows from Sheriff Arpaio and MCSO’s pattern or practice of retaliating against perceived critics of MCSO practices. The complaint outlines a number of instances where MCSO and Sheriff Arpaio have targeted a range of people, including judges, lawyers, and community leaders who made statements or took actions that they either disliked or perceived were critical of MCSO or the Sheriff.

A hallmark of our democracy is freedom of expression. It is equally important that dedicated public servants are able to carry out their responsibilities without fear of unlawful, retaliatory reprisals. The complaint outlines a series of retaliatory actions by MCSO and Arpaio, designed to silence and punish perceived critics, with the added effect of chilling would-be critics. Retaliatory activities were directed at public officials, judges and private citizens engaged in lawful protests. For instance, the complaint quotes from a recent opinion arising out of an ethics complaint filed against the former County Attorney and two of his assistants, which found the Sheriff and others to be involved in “a concerted effort to wrestle power from [the Maricopa Board of Supervisors], County officials and Superior Court judges, and to instill fear in the hearts of those who would resist.”

Nobody is above the law, and nobody can misuse the legal process to silence those with different opinions.

Leadership starts at the top, and all of the alleged violations outlined in the complaint are the product of a culture of disregard for basic rights within MCSO that starts at the top and pervades the organization. The complaint alleges that MCSO employees frequently use derogatory terms such as “wetback” and “Mexican bitches” to refer to Latinos. Such words and actions exemplify the culture of bias that contributes to the unlawful actions.

In terms of next steps, the matter will now be assigned to a federal judge, and we will follow the Court’s direction. Our goal remains the same: we want to fix the problems and work collaboratively with the defendants, the community, and the court, to devise and implement a comprehensive blueprint for sustainable reform. We recognize the hard and dangerous work law enforcement officers do every day. Our work is intended to make their work more effective and safer.

I would rather fix the problem than debate the existence of a problem. It was ironic that yesterday, the same day that the defendants received our letter informing them that a lawsuit was imminent, Sheriff Arpaio released a 17-page document entitled, “Integrity, Accountability, Community.” We see these 17 pages as largely an admission of the problem. As our complaint states, MCSO’s failure to ensure integrity and accountability has led to a crisis of confidence within the community. While it is noteworthy and perhaps heartening that a number of these changes appear to be taken from the 128 page proposed settlement agreement that we provided back in February, this too little, too late document cobbled together beyond the 11th hour, is no substitute for meaningful reform.

It is time to forge comprehensive, sustainable solutions that include meaningful, independent oversight. Unfortunately, today’s complaint, and the time-consuming path that will follow, is the only way forward.

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